United States v. Nixon (1974)

Historical Background

The early 1970s was a time of growing distrust in the National
Government. The Pentagon Papers exposed the intentional deception of
the American people about Vietnam. Americans were shocked when the
National Guard opened fire at a Kent State University protest
following President Nixon's authorization for the United States to
attack Cambodia. Four students were killed. Nixon would soon add more
fuel to the fire, attempting to cover up illegal actions by himself
and his administration.

Circumstances of the Case

In June 1972, five men armed with cameras and bugging equipment
were arrested inside the Democratic National Committee's offices in
the Watergate complex in Washington, D.C. Police soon discovered that
the burglars worked, directly or indirectly, for the Committee to
Re-Elect the President. President Nixon and leaders of his campaign
denied any connection with the incident.

The five men were convicted of burglary, along with E. Howard
Hunt, Jr., a former Nixon aide, and G. Gordon Liddy, a lawyer for the
Committee to Re-elect the President. Shortly afterward, the presiding
judge received a letter from one of the convicted men. It spoke of
payoffs to the burglars in return for their silence—the men had
perjured themselves to protect others involved in the break-in.

In 1973, a Senate select committee began an investigation, and
it became clear that top members of the Nixon administration were
involved in a cover-up of the break-in and several other illegal
actions. It was also discovered that Nixon had installed a taping
system that automatically recorded all of his conversations with his
advisors. A special prosecutor appointed to probe the Watergate
scandal subpoenaed the tapes. Nixon refused to release them, claiming
they were protected under executive privilege. Nixon eventually
released some of the tapes, but portions of them had been
erased. Finally, another special prosecutor asked the United States
Supreme Court to compel Nixon to release all of the tapes in their
entirety.

Constitutional Issues

Does the separation of powers created by the Constitution
provide the President with an absolute power to withhold information
from other branches of government? If the power is not absolute,
should President Nixon be able to claim executive privilege under the
aforementioned circumstances? Does the separation of powers allow for
the settlement of this dispute to reside in the executive branch or
should it be settled by the judicial branch? Does the claim of
executive privilege damage the precedent set by the 5th Amendment,
which ensures due process?

Arguments

For the United States: The
President's power to claim executive privilege is not an absolute
one. Executive privilege may not be invoked to deny the courts access
to evidence needed in a criminal proceeding. This is a dispute that
can properly be heard in the federal courts.

For President Nixon: The
constitutional scheme of separation of powers grants to the President
the privilege of withholding information from the other branches of
government. Furthermore, this power is absolute, and it is vital where
high-level communications are involved. In addition, this dispute
should be resolved within the executive branch, not by the
courts.

Decision and Rationale

The Court ruled unanimously that President Richard Nixon had to
surrender the tapes. Chief Justice Warren Burger delivered the opinion
of the Court. Burger wrote, “The impediment that an absolute,
unqualified [executive] privilege would place in the way of the
primary constitutional duty of the Judicial Branch to do justice in
criminal prosecutions would plainly conflict with the function of the
courts under Art[icle] III.”

Burger then turned his attention to the damage that a privilege
of confidentiality would cause to citizens' constitutional rights:
“The right to the production of all evidence at a criminal trial
similarly has constitutional dimensions. The Sixth Amendment
explicitly confers upon every defendant in a criminal trial the right
'to be confronted with the witnesses against him' and 'to have
compulsory process for obtaining witnesses in his favor.' Moreover,
the Fifth Amendment also guarantees that no person shall be deprived
of liberty without due process. It is the manifest duty of the courts
to vindicate those guarantees, and to accomplish that it is essential
that all relevant and admissible evidence be produced.” The
Court made it clear that the President could not withhold evidence
from an ongoing criminal prosecution of another person simply because
he was the President.

Several days before, the House Judiciary Committee had approved
three articles of impeachment. On August 9, 1974, Nixon became the
first President in U.S. history to resign from the presidency. He did
so in order to avoid going through the likely prospect of being
impeached by the full House of Representatives and convicted by the
Senate.